29 Sep 2011

A right to sue for invasion of privacy? The Australian Government's privacy Issues Paper

by Avinesh Chand

The Issues Paper suggests that individuals should be able to sue over serious invasions of privacy.

Australians could have another avenue for controlling their private information if the Federal Government proceeds with the proposal for legislation which would allow Australians to take legal action if their privacy has been seriously invaded.

The Minister for Privacy and Freedom of Information, Brendan O'Connor, released an Issues Paper, "A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy", on 23 September 2011 which invites comment on whether Australia should legislate a statutory cause of action for privacy and, if so, what form it might take.

Although some US States and Canadian provinces have enacted a statutory cause of action for privacy, Australia would (if this proposal is adopted) be the first common-law country to do so at a national level.

Responses from the public on the matters discussed in the Issues Paper will inform the Australian Government's response to the Australian Law Reform Commission's (ALRC)2008 recommendation that a statutory cause of action for serious invasions of privacy be introduced.

The Issues Paper poses a number of questions on the form a possible statutory cause of action might take and discusses some of the options available, including:

What should be the test for an invasion of privacy?

The ALRC, Victorian Law Reform Commission (VLRC) and New South Wales Law Reform Commission (NSWLRC) all recommended that the test for the cause of action require the plaintiff to show that there had been, in the circumstances, a reasonable expectation of privacy.

The ALRC and VLRC further recommended that the plaintiff should also be required to meet an objective test of seriousness or offensiveness: that the invasion of the expected privacy would be highly offensive to a person of ordinary sensibilities.

The ALRC, VLRC and NSWLRC have acknowledged that fundamental factors to be taken into account when considering a cause of action for serious invasion of privacy include the public interest in protecting individuals' privacy and personal information, the implied constitutional freedom of political communication and the broader public interest in maintaining freedom of expression and the interest of the public to be informed about matters of public concern.

The ALRC and NSWLRC have recommended that a court should be able to take into account the range of competing public interests when determining whether an actionable breach of privacy exists.

The VLRC has departed from the ALRC and NSWLRC models by recommending that instead of the public interest being a consideration when determining whether an actionable breach of privacy exists, the defendant could put the existence of a public interest in the particular conduct complained of as a defence.

What defences should be available?

The ALRC recommended that an exhaustive list of defences to any statutory cause of action be included in the legislation. It recommended that the defences should include at least that:

  • the act or conduct was incidental to the exercise of a lawful right of defence of person or property;
  • the act or conduct was required or authorised by or under law;
  • publication of the information was, under the law of defamation, privileged.

The Issues Paper notes that some stakeholders have seen additional defences as desirable. These could include a defence that information is already in the public domain; or a defence that disclosure has been made for the purpose of, and in the course of, rebutting an untruth.

What type of remedies would be necessary, sufficient, and appropriate?

The ALRC has recommended a broad range of flexible and adaptable remedies be provided for as part of the proposed statutory cause of action, including that a court should be empowered to grant one or more of the following:

  • damages, including aggravated damages, but not exemplary damages;
  • an account of profits;
  • an injunction;
  • an order requiring the respondent to apologise to the claimant;
  • a correction order;
  • an order for the delivery up and destruction of material; and
  • a declaration.

The ALRC has recommended that claims under the proposed cause of action be actionable without proof of damage. As such, like the torts of trespass and defamation in Australia, an invasion of privacy would be actionable, even if it has not caused a type of damage presently or fully recognised by the general law.

The Issues Paper notes that an alternative approach would be to require damage more in line with the tort of negligence, meaning that the plaintiff would have to show "damage" had occurred for the cause of action to exist. The Issues Paper suggests that if such an approach was taken, a broad definition of "damage" could be considered, so that it includes economic and financial damage, as well as a range of non-economic damage such as mental anguish or distress.

Should only natural and living persons be allowed to sue?

The ALRC, NSWLRC and VLRC have recommended that the cause of action only be available to individuals rather than to the broader concept of "legal persons" which would extend to, amongst others, corporations. This approach would be consistent with Canadian and US law and comment from the High Court of Australia.

The ALRC, NSWLRC and VLRC have also recommended that only living persons, and not estates of deceased persons, have the capacity to bring proceedings. The VLRC explained in its report that the "rationale for excluding deceased persons from a right of action for defamation or privacy is that deceased persons cannot suffer any insult to reputation or dignity and cannot incur the injury to feelings and mental distress that flows from these insults".

When must a plaintiff commence an action for serious invasion of privacy?

The NSWLRC has proposed that, to ensure consistency with elements of defamation law, an action for serious breach of privacy be required to be commenced within one year of the relevant conduct, but the courts to have a discretion to extend the limitation period to three years.

The VLRC has recommended that a three year limitation period would be appropriate as it would be consistent with the limitation period for causes of action for personal injuries and with the outer limit of defamation proceedings.

What happens next?

Comments and suggestions on the issues and questions raised in the Issues Paper, and on any related matter relevant to the proposal for a new statutory cause of action for serious invasion of privacy must be received by Friday 4 November 2011.


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